Part 4

This may be regarded as the first actual breach of justice on the one side and good faith on the other, as between the home government and the American dependencies of Great Britain.

The reader will note that the question at issue was from the first commercial. It was a question of taking something from the colonists and of giving no equivalent, either in value or political rights. Had the American colonists been willing to be taxed and searched without an equivalent, then would there have been no revolution.

It will be noted from the nature of the question that the issue, since it was a matter of the merchants, was also a matter of the cities. For the merchant and the city go together. With the country folk of the pre-revolutionary era, the faultfinding and dispute related always to political questions proper--to questions of rights as between the king and his subjects; to questions of institutional forms, the best method of governing, etc.

All of these matters, however, could have been easily adjusted, and if there were an "if" in history they would have been adjusted without revolution and without independence. The commercial question, however, involving money rights, and implying the privilege and power of the Mother Country to take from the Colonists their property, however small the amount, could but engender resistance, and if the claim were not relinquished could but lead to war and disruption.

The neglected growth of the Colonies had in the meantime established in the seaboard towns of America, usages and customs which were repugnant to British notions of regular and orderly government. The commercial life had taken a form of its own.

The Americans had built ships and warehouses. They had engaged in commerce as they would. They had made their trade as free as possible. They had ignored the old Navigation Act, and when the Importation Act was passed, it confronted a condition in America.

It applied to a state of affairs that already existed.

The American ship, trading with the West Indies and bringing back to Boston a cargo of molasses or rum, was met at custom house with an exorbitant requisition. The officer acting under the Importation Act, virtually said, "Stand and deliver."

If it were a British ship the resistance to the duty would be offered by the land merchants rather than by the sea traders; for the merchants did not desire that the cost of the merchandise to themselves and their customers should be doubled without some equivalent advantage. No equivalent advantage was either visible or invisible. What, therefore, should they do but first evade and then openly resist?

There was an epoch of evasion. This covered a period of about seventeen years, extending from 1733 to 1750. In the latter year an act was passed by Parliament forbidding the erection of iron works in America. The manufacture of steel was especially interdicted. The measure which was in reality directed against shipbuilding included a provision which forbade the felling of pines outside of enclosures. It was thus sought by indirection to prevent the creation of a merchant marine by the American Colonists and to limit their commerce to British ships. This measure like the Importation Act was also ignored and resisted. For eleven years the Americans persisted in their usual course, making iron, cutting pine timber and building ships, importing molasses and rum, evading the duties, and thus getting themselves into the category of smugglers.

It was this precise condition of affairs which led to a still more stringent measure on the part of the home government. It was determined in Parliament to put an end to the evasion and resistance of the American merchants and importers with respect to the existing laws. The customs should be collected. It was deemed best, however, that the new measure should issue from the judiciary.

An appeal was made to the Court of Exchequer in England for the granting of search warrants to be issued in America by the king's officers for the purpose of ferreting out contraband goods. These warrants granted by the Court of Exchequer were the Writs of Assistance, the name of which appears so frequently and with so much odium in the colonial history of the times. These writs were granted by the court under pressure of the ministry in the year 1760.

The Writs of Assistance were directed to the officers of the customs in America. But any officer could arm one of his subordinates, or indeed any other person whom he should designate, with one of the writs, and the person so appointed might act in the name of the king's officer.

The thing to be done was the examination of any place and all places where contraband goods might be supposed to be lodged. Whether there were evidence or no evidence, the case was the same. The document was a writ of arbitrary search.

Any house, public or private, might be entered at any time; any closet or any cellar might be opened. Neither the bridal chamber nor the room of the dead was sacred on the approach of any petty customs constable or deputy in whose hands a Writ of Assistance had been placed. The antecedent proceedings required no affidavit or any other legal formality. The object was to lay bare the whole privacy of a people on sheer suspicion of smuggling.

It could hardly be supposed that our fathers would tamely submit to such an odious and despotic procedure. To have done so would have been to subscribe to a statute for their own enslavement. Nor may we pass from the consideration of these writs and the resistance offered thereto by the patriots of all our colonies without noticing the un-English character of these laws.

Of a certainty Englishmen in whatever continent or island of this world would never tolerate such a tyrannical interference with their rights. This was demonstrated not only in America, but in England also.

The issuance in England of just such illegal and arbitrary warrants was one of the causes that led to the tremendous agitation headed by John Wilkes. The excitement in that controversy grew, and notwithstanding the repeated arrests of Wilkes and his expulsions from Parliament, his reelection was repeated as often, and his following increased until not only the ministry but the throne itself was shaken by the cry of "Wilkes and Liberty." Nor did this well-timed ebullition of human rights subside until the arbitrary warrants were annulled by a decision of the King's Bench.

It was the trial of this issue in America that brought on the Revolution. It was a great cause that had to be pleaded, and the occasion and the city and the man, were as great as the cause. The parties to it were clearly defined, and were set in sharp antagonism.

On the one side were the king's officers in the province, headed by the governor. This following included the officers of the customs in particular. It also included the not inconsiderable class of American respectabilities who were feeble in American sentiments, and who belonged by nature and affiliation to the established order. These were the loyalists, destined to be designated as Tories, and to become the bete noire of patriotism.

On the other side was a whole phalanx of the common people--a phalanx bounded on the popular side by the outskirt of society and on the high-up side by the intellectual and philosophical patriots who were as pronounced as any for the cause of their country, and with better reason than the reason of the many.

The officers of the province elected by the home folks were all patriots, but the appointed officers of the crown were quite unanimous for the prerogative of the crown, holding severe measures should be taken with the resisting colonists, and in particular that the Writs of Assistance were good law and correct policy.

We should here note the particular play of the personal forces in the year 1760. There were two notable deaths--the one notable in Massachusetts and the other in the world. The first was that of Chief Justice Stephen Sewall of Massachusetts, and the other was that of His Majesty George II, the

"Snuffy old drone from the German hive,"

as he is described by the "Autocrat of the Breakfast Table." The first was succeeded in office by Thomas Hutchinson, Lieutenant-Governor of the province under Sir Fraucis Bernard, who was appointed governor in this notable year 1760 as the successor of Thomas Pownall, who had succeeded Governor William Shirley.

Hutchinson--to use the adjective which John Adams was wont to apply to himself and other patriots to the manner born--was a Massachusettensian. He had sympathized with the people, but he now turned against them. Before Judge Sewall went away it was said and believed that Governor Shirley had promised the place of Chief Justice, when the same should be vacant, to no other than Colonel James Otis of Barnstable, father of the subject of this sketch.

But Governor Bernard, Shirley's second successor in office, took another view of the matter and appointed Lieutenant-Governor Hutchinson to the high office of Chief Justice.

It was the belief and allegation of the King's party that this appointment and this disappointment--the first of Hutchinson and the second of Colonel Otis--bore heavily on all the Otises, and indeed converted them from royalism to patriotism.